European Court Flies In Face of British Legal Opinion

The European Court of Human Rights rejected the appeal by Brown and Jaggard in the case Regina vs Brown. But their decision contradicts current legal opinion on the matter and leaves the British Courts with an unworkable, unpopular precedent that sits outside current public thinking on the right to a private life.

The European Court of human Rights ruled in unanimous verdict that it was the place of a government to intervene in a person's private life where it felt that activities being committed were contrary to public health. And on such basis, intervention was necessary in a democratic society.

The court's judgement rested on a number of problematic areas and it is clear that court failed to take into consideration recent changes in legal and public opinion over the ten years whilst this case has been fought.

The Court ruling argues that it is "unquestionably one of the roles of the state to regulate activities which involve the infliction of physical harm". In contrast, The Law Commission which has taken submission from a wide section of legal, medical and public opinion states in its second report "consent to sm sex causing injuries should been seen as valid" unless the injuries were of a permanent disabling nature."

It should be noted that whilst the european court were prepared to accept the government description of the activities as "torture", in real life none of the defendants in Regina vs Brown required even first aid treatment. Rob Grover, a long time member of the campaign said " Can someone explain how organising an overnight or weekend party with a couple of friends, with intention of having bigger and better orgasms, can be anything to do with torture"

The Court accepts the government view that the men involved were "recruited" as "new members". Whereas it is a matter of public record that men who took part in the private parties met each other through advertisements placed in the personal columns in newspapers, as thousands of people meet others every week for love, marriage or romance.

The Court further argued that it did not accept that the acts committed by the men could be described as being trifling or transient. The court failed to take note of recent changes in the British Crown Prosecution Guidelines that now mean that the acts the men in R. vs Brown would not now be considered acts of Actual Bodily Harm. And, the court also failed to take note of changes in public opinion which saw The Times Editorial describe the Law Lords ruling against the men as " illiberal nonsense"; the Independant Editorial arguing that in such cases the judges "should interfere as little as possible" and where fetish and sm regalia is now sold in shops as moderate as Ann Summers.

The Spanner Campaign have always argued that this was a gross invasion of a person private life in contradiction of Article 8 of the charter, and we believe that legal opinion and public opinion supports this view. This ruling is based on an erroneous view of what the British public opinion regarding unacceptable behaviour in private. It cites suppression of such activities as "being matters of public health" but does not explain how private sexual activities between consenting adults might be considered damaging to public health.

The campaign believe that this judgement stands the European Charter of Human Rights on its head by protecting the right of a government to persecute its citizens on the dubious grounds of protecting them from themselves. The result of the ruling will not clarify the ongoing debate concerning issues of injuries during consenting sex, it simply attempts to suppress the whole debate by criminalising all such activities.

Indeed, it is appalling that after decades of sexuality rights campaigning, the same turgid attacks (of corruption, immorality, recruitment and public health) should be used against SMers, as they have been used against gays, lesbians, bisexuals, the transgendered, sexually active single people and prostitutes.

This ruling continues to keep Britain at the top of the table of sexually repressed european societies and yet, IF the Court or the Britsh state were really interested in public health, surely they would be concerned that activities that many people properly regard as their private sexual activities, will now be performed in ignorance and in fear, without recourse to practical safety information, or medical assistance should an accident occur.

Yet, in spite of the ruling, or perhaps in defiance of it, The Spanner Campaign have vowed to continue their struggle for SM rights.

As Kellan Farshea, founder of the campaign said " We are not torturers, pollutants or public health hazards but simply consenting adults practising consenting adult sex. What we demand is those democratic rights supposedly enshrined in the European Charter: respect; dignity; equality; justice; protection by the law; the right to a private life and freedom from persecution... We require these rights, we deserve these rights, and we will not give up until we have won these rights"